NATIONALLY RECOGNIZED FEDERAL LAWYERS
Last Updated on: 29th August 2023, 06:06 pm
Disputes among family members is not unusual. Most families manage to work through the issue and come to agreeable terms. However, there are times when one person’s emotions rise to a level that requires legal intervention. This is known as a family offense petition.
What is a Family Offense Petition?
A family offense petition is filed in a New York State family court that explains the claims one family member makes against another. The petition may cover one or more of certain alleged acts such as:
• Aggravated harassment in the second degree
• Assault in the second or third degree
• Attempted assault
• Criminal mischief
• Criminal obstruction of breathing or circulation
• Forcible touching
• Harassment in the first or second degree
• Reckless endangerment
• Sexual misconduct
There must be a familiar/intimate relationship between the Petitioner (person filing the petition) and the Respondent (person responding to the petition). The legal criteria for this requirement includes legally married persons, blood relatives, divorced persons, and unrelated persons who have a child together.
Filing a Family Offense Petition
Filing a family offense petition starts a process where several things can happen. The petitioner can have a court appearance the same day that the petition is filed. During this court appearance, the judge may decide evidence shows good cause for a temporary order of protection, one will be granted.
If evidence does not make the petition legally sufficient, an order of protection is not granted and the judge will dismiss the petition.
A lawyer experienced with New York family law can assist with drafting a family offense petition to ensure an efficient filing that does not get dismissed.
Courts That Issue Family Offense Petitions
A Family Court issues family offense petitions in most cases. However, a Criminal Court may also issue orders in extreme circumstances or if Family Court is not in session.
In cases where the respondent denies allegations, the judge will require a fact-finding hearing to determine where the allegations are true. The case can be dismissed after the hearing if the judge determines nothing occurred. A dispositional hearing is held when allegations are found to be true.
Going to Trial
The petitioner is responsible for proving the family offense petition by a preponderance of evidence. This includes evidence such as:
• Police reports
• Medical records
• Damaged items
• Written statements
Likewise, the respondent must present evidence to the family court to defend against the petition. A trial can end with a dismissed petition or dispositional order.
Dispositional orders can have many stipulations, including up to a one year probation for the respondent. Some orders suspend judgment for six months, while others order the respondent to pay up to $10,000 in restitution.
Additionally, dispositional orders may contain other requirements by which the respondent must abide. These requirements may include:
• Staying away from the petitioner
• Not going to petitioner’s job or children’s school
• Paying medical bills petitioner incurred from abuse-related injuries
• Paying petitioner’s legal fees
• Participating in a battery and/or substance abuse program
The final order may also give the respondent time to remove personal belongings from a shared residence. Visitation with children may also be granted if the court deems safety is not an issue for the children.
What Happens after an Order of Protection Violation
There are consequences to a respondent violating the order of protection once the petitioner files a violation petition. The court can modify the protective order and give the respondent up to six months jail time for each violation.
It is also possible to transfer the case to Criminal Court when a violation puts the petitioner and/or children at risk for physical harm. The court can either suspend or revoke the respondent’s license to carry firearms. The respondent may also be forced to turn in any firearms they may own.
Reaching a Settlement in a Family Offense Petition
At any time during proceedings for a family offense petition, the petitioner and respondent can reach a settlement. If this happens, a determination of fault is made and terms of the final order are issued.
Getting Help from Qualified NYC Family Offense Petition Lawyers
Help from an experienced and qualified lawyer is essential to a family offense petition. Dissolution of the case comes with long-lasting effects. This type of petition can also impact a child support or child custody case.
nyc family offense petition attorney
When certain criminal or dangerous acts are committed between direct or indirect relatives or individuals with an intimate relationship, these acts fall under what’s called a family offense. In addition to filing criminal charges, family offense victims have the right to file a family offense petition to seek relief from their perpetrator(s.) This petition outlines the details of the alleged acts committed against the victim, names an alleged perpetrator(s), and specifies the type of relief sought.
What Relationships Fall Under Family Offenses?
• Blood relatives.
• Anyone currently or formerly related to each other by marriage, including in-laws, step-relations, and ex-relations.
• Two individuals sharing a blood-related or adopted child in common.
• Those with an intimate relationship; this does not have to be a sexual relationship, but it must be a relationship beyond causal, friendly, or business. The judge determines if the nature and type of a specific relationship classify it as “intimate” when there are questionable caveats in the statutory definition.
What Crimes Constitute A Family Offense?
• Harassment and aggregated harassment
• Disorderly conduct
• Assault and attempted assault
• Menacing behavior
• Reckless endangerment
• criminal mischief
Such offenses occur under innumerable circumstances, such as if a victim is physically assaulted or struck by an object; verbally, mentally or sexually abused; threatened with harm; followed or watched as they go about life; or receives continual unwanted contact from a family member.
Which Courts Deal With Family Offenses?
Victims have the right to file a family offense petition in criminal court and family court, and they can use both systems as needed. However, criminal court family offense judges have more leeway in the severity of sentencing, such as imposing greater jail time for perpetrators. And, because criminal court views family offenses as criminal acts, the prosecutor in the case doesn’t need neither the respondent’s nor petitioner’s cooperation to move the case forward. Both, however, do have the right to legal representation.
What Happens The Day The Petition Is Filed?
Once the petition is filed with the court, the case will be reviewed immediately by the judge to determine “good cause” and the need for any immediate temporary orders before hearing from the respondent (the accused person.) This is done the same day the petition is filed.
There are three main directions the petition may take 1) good cause with protective orders and a hearing date, 2) good cause with just a hearing date, 3) or no good cause and a dismissal of the petition.
If the judge determines there is good cause to believe the victim’s allegations against the respondent and the presence of an immediate threat or need, then the judge may issue any temporary orders he/she feels is appropriate for the case immediately, including:
• An arrest warrant for the respondent if the threat of immediate danger is present.
• An order for temporary child support if children are involved.
• Stay away order, which means the respondent cannot go to the victim’s home, school, job, or other frequented places listed. The protective order may also include any children and their frequented places.
• Refrain orders from specific acts, such as to stop calling, texting, mailing the victim and any children involved.
• The ability for the victim to collect belongings from a shared home. Police may be ordered to be present for the victim’s safety.
• Prohibit the respondent from returning to a shared home with the victim.
• Pet protection orders.
• An order to revoke or suspend the respondent’s firearm license. A surrender of firearms order may also be issued.
Again, these are temporary protective order possibilities for immediate needs and dangers, and they only last until the conclusion of the official hearing that will also be scheduled.
If the judge sees good cause without an immediate danger or need for protective orders, then he/she will order a summons for the respondent to appear before the court on a specified date and time.
If the judge does not see good cause, he/she can dismiss the petition.
What Is The Process For A Family Offense Petition?
Once you’ve served the respondent with a court date, the respondent may admit or deny the allegations set forth in the petition. Denied allegations require a fact-finding hearing to determine the truthfulness of the allegations. The judge may take the time to gather information. If the judge determines the allegations aren’t true, then the case is dismissed. Otherwise, a disposition hearing is held, in which the judge may issue any number of dispositional orders, including:
• Suspending judgment in the case for six months as an informal type of probation for the respondent.
• Formal probation for up to a year with or without the caveat of completing educational or addiction programs at the respondent’s expense.
• Restitution of up to $10,000.
• Issuing orders of protection for the victim by which the respondent will be required to adhere to certain requirements for up to five years.
What Does A Final Order Of Protection Include?
In most cases, the final order of protection is effective for two years or less. However, in aggregating circumstances, the judge has the authority to issue them for up to five years. The requirements set forth for the respondent may include any of the aforementioned temporary order provisions in addition to any of the following:
• Stay away orders for the victim and/or children.
• Payment of the victim’s legal, medical, and counseling fees.
• Mandatory participation in addiction and educational programs.
• Refrain from committing additional or continual family offense acts.
• Designated or supervised visitation orders for children involved
• Arrangement of supervised or designated child visitation.
What Can Be Done If The Respondent Violates The Court’s Orders?
The victim will file a violation petition if the respondent doesn’t adhere to the court’s family offense orders. Proven violations can result in the court issuing further protective orders or the respondent serving up to six months jail-time for each violation act. criminal courts have the authority to issue jail sentences beyond six months.